Open Internet Back in the Crosshairs

If there were any doubts that new FCC Chairman Ajit Pai would fall in lockstep with the Trump Administration, wonder no more. Last week Pai revealed his plans to undo the Commission’s Open Internet Order, passed just a little more than two years ago.

In particular, he vows to strip internet service of so-called Title II protection, which classifies it as a common carrier service or utility, like telephones. Although previous FCC Chairmen tried all sorts of maneuvers to implement protections for internet users without invoking Title II—including Chairman Wheeler, who authored the current Open Internet rules—the DC Circuit Court of Appeals court made it pretty much unavoidable. Effectively, the Court ruled that the FCC could apply anti-blocking and nondiscrimination rules to internet service while it remained classified as an “information service.”

But it’s not as if this idea came out of nowhere. Internet service was classified as common carrier under Title II from the very beginning. It was only during the last Bush administration that the Commission decided to reclassify it as an information service. The Appeals Court said that classification doesn’t support a strong open internet regime, basically advising the FCC to reclassify internet service as common carrier, which it finally did in 2015.

In the speech announcing his plan Pai claimed that, “Nothing about the Internet was broken in 2015. Nothing about the law had changed. And there wasn’t a rash of Internet service providers blocking customers from accessing the content, applications, or services of their choice.” The media reform organization Free Press disputes this assertion. In fact, outside the Newseum in Washington, DC, where Pai gave his speech, staff handed out copies of a pamphlet outlining about a dozen Open Internet violations occurring before 2015.

Pai also claimed that the current Open Internet rules harm internet privacy, have held back investment in broadband infrastructure, and also encourage redlining low-income areas, keeping them from getting high-speed service. Gizmodo has a sharp fact-check of these claims in a subtly titled post, “The worst lies from yesterday’s anti-net neutrality speech.”

The curious thing about Pai’s speech is that he went to great pains to single out network neutrality advocates for scorn, accusing them of actually wanting a government take-over of the internet. He specifically targeted the Free Press by going after “its cofounder and current board member,” whom he does not name, by repeating some relatively obscure quotes about capitalism and Venezuelan media (from 2009)—though not about network neutrality. Not coincidentally, these quotes have circulated in “alt right” circles for a while, and most recently were published in a Breitbart piece a week prior. That unnamed co-founder is Prof. Robert McChesney, whom Free Press notes is now an emeritus board member. Free Press also says that, “Neither of these articles involved Free Press staff, and they weren’t published on our website.”

Shifting our attention again to the courts, regardless of Chairman Pai’s opinion, on Monday the DC Circuit rejected a request to review an earlier decision upholding the Title II provisions of the FCC’s Open Internet Order. The USTelecom trade group that brought the suit could still try to appeal the decision to the Supreme Court. However, Pai may just beat them to the punch by leading his three-commissioner FCC to nix the rules (likely by a 2 to 1 majority).

Pai’s route is to open a proposed rulemaking procedure, which will have a public comment period. Recall that the last time around some four million people submitted comments to the FCC, breaking records. The vast majority of those comments supported net neutrality. Does Chairman Pai expect a different outcome this time around?

We cover network neutrality here at Radio Survivor because radio is not just about airwaves. Thousands of terrestrial and online-only stations depend on the internet to reach millions of listeners, as do an untold number of podcasters. Moreover the internet is used to move sound files and important data around, connecting journalists to producers, connecting stations to programming, keeping the wheels of modern broadcasting turning.

It’s a very real concern that without network neutrality provisions some internet broadcasts and podcasts could find speedbumps in their route to listeners, while larger, more well-resourced broadcasters get an express lane. This could harm independent broadcasters and podcasters, community and college radio stations, and potentially impede innovative and new internet audio services. Three years ago, while the Open Internet debate was raging, Matthew Lasar detailed “four reasons why net neutrality matters for mobile radio,” which is just as, or more, relevant today.

We briefly reviewed this development on this week’s podcast. We’ll take a much deeper dive next week, when our reliable FCC watcher Prof. Christoper Terry from the University of Minnesota will be our guest.

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About Paul Riismandel

Paul Riismandel is co-founder and operations director of Radio Survivor. He is also the podcasting evangelist for Midroll Media, serving as producer for The Wolf Den podcast. Paul has more than 20 years of experience in non-commercial radio and instructional media. He is a contributing editor for Streaming Media Magazine, covering the education beat.